February 25, 2009

Senators Question OLC Nominee on National Security

The nominee to lead the Office of Legal Counsel faced questions today about the same set of issues that occupied the office under the Bush administration: the legal limits of the executive branch in preventing terrorism.

Senators asked Dawn Johnsen (above), a law professor at Indiana University at Bloomington, to explain her views on detaining potentially dangerous combatants, on interrogation techniques, and on the confidentiality of OLC opinions related to national security. She has been a vocal critic of the office's work during the last eight years.

Johnsen said it would not be her job if confirmed to determine the fate of the approximately 245 remaining detainees at the Guantánamo Bay military prison, though she would advise the Obama administration on the legality of various options.

Asked by Sen. Lindsey Graham (R-S.C.) whether the United States is at war, Johnsen initially hesitated. "I generally do, but I'm reluctant to give a no or yes," she said. She then clarified that she thinks the nation is at war with members of al-Qaeda.

Johnsen did not hesitate when Sen. Dianne Feinstein (D-Calif.) asked whether she thinks torture could ever be justified under the law — "No, senator, I do not," Johnsen said — or whether she thinks waterboarding is torture — "Yes, senator," she said. The answers echoed those given by Attorney General Eric Holder Jr. at his confirmation hearing.

She said that the Office of Legal Counsel should have a general presumption to publish its opinions, which have the effect of court opinions for the executive branch, especially if such opinions would "surprise Congress" on a matter of statutory interpretation. But, she added, she would make such decisions case-by-case.

Senators spent much more time questioning Johnsen than they did David Kris (below), nominee for assistant attorney general for the National Security Division and senior vice president and deputy general counsel at Time Warner. Kris, who has been widely praised for his expertise on national security investigations, told senators that he thinks the government does have the authority to hold enemy combatants for the duration of a conflict.

With a few exceptions, the hearing did not focus on Johnsen's time as legal director for the abortion-rights group NARAL Pro-Choice America from 1988 to 1993, work that has energized conservative opposition to her nomination. The most pointed questions on abortion came from Sen. Arlen Specter (R-Pa.), who favors abortion rights but asked Johnsen about a footnote she wrote in a brief two decades ago.